Overview
NY aggressively prosecutes drug offenses. Mere possession of a controlled substance becomes a felony once the weight passes a threshold set by statute, and intent to sell is often inferred from quantity or packaging alone. NY law also presumes possession in many cases based on proximity and association: drugs in a car are presumed possessed by everyone in it, and drugs in open view in a room by everyone close by (Penal Law 220.25).
However, NY and federal case law holds strong guardrails against police intrusion, and many cases are often litigated in suppression hearing.
Thomas Plan regularly defends drug charges through hearings and trial.
Suppression and the fruit of the poisonous tree
Evidence the police obtain by an unlawful stop, search or interrogation cannot be used against you (Mapp v. Ohio, 1961). The rule reaches further than the first piece of evidence: whatever the police found by exploiting the illegality, such as a later search, a statement or a phone, is the "fruit of the poisonous tree" and is suppressed with it (Wong Sun v. United States, 1963).
New York protects more than federal law does. Under People v. De Bour (1976), each level of police contact needs its own justification: a simple request for information, a common-law inquiry, a forcible stop, an arrest. An encounter that escalates without the required basis taints what follows. The motion to suppress is made under CPL 710.20 and decided at a hearing where the officers testify and are cross-examined.
Offenses and penalties
| Section | Offense | Class |
|---|---|---|
| 220.03 | Criminal possession of a controlled substance, 7th degree | A misdemeanor |
| 220.06 | Criminal possession, 5th degree (intent to sell; or weight, e.g. cocaine 500 mg or more) | D felony |
| 220.09 | Criminal possession, 4th degree (e.g. narcotic drug ⅛ oz or more) | C felony |
| 220.16 | Criminal possession, 3rd degree (e.g. narcotic drug with intent to sell) | B felony |
| 220.18 | Criminal possession, 2nd degree | A-II felony |
| 220.21 | Criminal possession, 1st degree | A-I felony |
| 220.31 | Criminal sale, 5th degree | D felony |
| 220.34 | Criminal sale, 4th degree | C felony |
| 220.39 | Criminal sale, 3rd degree (e.g. any narcotic drug) | B felony |
| 220.41 | Criminal sale, 2nd degree | A-II felony |
| 220.43 | Criminal sale, 1st degree | A-I felony |
| 220.44 | Criminal sale in or near school grounds | B felony |
| 220.48 | Criminal sale to a child | B felony |
| 220.77 | Operating as a major trafficker | A-I felony |
Sentencing, first felony drug conviction (determinate terms):
| Class | Prison |
|---|---|
| A-I | 8 to 20 years |
| A-II | 3 to 10 years (lifetime probation possible) |
| B | 1 to 9 years (2-year minimum for 220.44 and 220.48) |
| C | 1 to 5½ years |
| D | 1 to 2½ years |
| E | 1 to 1½ years |
Probation is available for B through E drug felonies. A prior felony conviction raises every range. Sources: Penal Law Article 220, §§ 70.70, 70.71.
Results
People v. M. (court, year). Facts of the case. At the suppression hearing, what the hearing showed. The court suppressed the drugs. Outcome. Lessons learned.
People v. C. (court, year). The District Attorney sought a life sentence under the persistent felony offender statute (Penal Law 70.10). At the hearing the defense called three witnesses. The court imposed 6 years, followed by 1 year of post-release supervision.
Attorney Advertising. Prior results do not guarantee a similar outcome.
FAQ
How can I challenge a search?
By a motion to suppress under CPL 710.20, filed after arraignment. If the motion raises a factual dispute, the court holds a hearing at which the officers must justify each step: the stop, the questions, the search. Anything found as a result of an unlawful step is excluded.
What is a suppression hearing?
A hearing before a judge, without a jury, on whether the police acted lawfully. The prosecution must go forward with evidence that they did; the defense cross-examines and may call its own witnesses. If the evidence is suppressed, the prosecution often cannot proceed.
What is presumptive possession?
Penal Law 220.25 lets a jury infer that everyone in a car where drugs are found possessed them, and that everyone close to drugs in open view in a room being prepared for sale possessed them. There are exceptions: for example, drugs concealed on one person's body. The presumption can be rebutted, and the jury is never required to apply it.
Do I need to answer a police officer's question?
No. You have the right to remain silent. Give your name if asked, and say clearly that you want to speak to a lawyer. Be polite, do not resist, and do not consent to a search.
What if it is my word against a police officer's?
Then the case turns on credibility, and credibility can be tested: body-camera and dash-camera footage, radio logs, the officer's own reports and prior testimony, and the physical facts of the scene. Officers' accounts often change between the report, the hearing and the trial.
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